Arizona violates U.S. Constitution to attack unions

NYHTC — June 12, 2011

The National Labor Relations Board filed a federal lawsuit against the State of Arizona on May 6 and announced it expected to file a similar suit against the State of South Dakota within the next several weeks, to challenge recent changes to the two states' constitutions designed to prevent workers from organizing unions, and blatantly violative of the United States Constitution.

Recently, Arizona, South Carolina, South Dakota, and Utah, states with long and infamous histories of suppressing worker rights, each passed constitutional amendments similar in effect: they interfere with the right of workers to be represented by a union they designate.

The pending lawsuit against Arizona seeks a judicial declaration that the amendment to its constitution is "preempted" by operation of the National Labor Relations Act and the Supremacy Clause of the United States Constitution. Under that clause, federal laws take precedence over any state laws that conflict with them. If the NLRB wins, Arizona's constitutional amendment will have no legal force or effect.

All four amendments make secret ballot elections the only way workers can win union representation. Federal labor law, however, recognizes two alternative routes: victory in a secret ballot election conducted by the NLRB and an employer's voluntary recognition of a specific union based on reliable evidence that a majority of its workers want to be represented by it, normally by card check, a procedure familiar to NYHTC members.

It appears that the anti-worker forces that passed these constitutional amendments in the four states did so with the deliberate intention of violating the Federal Constitution. Increasingly aggressive right-wing extremists have taken control of a number of states and are hell-bent on eliminating many of the hard-won rights of minorities, women, immigrants, and workers. The passage of these amendments recalls the years leading up to the American Civil War, when slave states like South Carolina claimed the right to "nullify" federal laws they didn't like.

The Attorneys General of the four states blustered in a joint letter that they found it "extraordinary" that the NLRB "would use its resources to sue [their] states for constitutionally guaranteeing the right to vote by secret ballot[.]" The Arizona Attorney General was quoted in an article in the New York Times as having said, "I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot." Interestingly, the advocates of the anti-union amendments have made no case to claim any widespread coercion of workers to sign union cards against their will. In fact, under federal law, if there is evidence of coercion, the NLRB can invalidate union card checks. If the Attorneys General were genuinely concerned about the right to a secret ballot, however, what they should have been denouncing as "extraordinary" and "shocking" is how consistently employers violate their employees' right to a secret ballot in union representation elections. Too many employers are serial offenders of federal labor law and routinely violate it by illegally spying on their employees to find out who of them support the union and illegally interrogating them about how they are going to vote and how their coworkers are going to vote.

So, despite the dishonest posturing of the Attorneys General and the anti-union forces who pushed for these amendments, they clearly do not care about protecting democracy by mandating secret ballot elections. They care about obstructing the right of workers to be represented by a union of their choice. Their goal is to hurt workers and to make it easier for unscrupulous employers to crush organizing efforts. Such elections are readily subject to repeated delay by employers, pre- and post-election, and can take years to finalize during which time they routinely subject their employees to illegal surveillance, acts of intimidation and harassment, and retaliatory firings, all aimed at destroying support for the union.

In fact, these anti-worker, anti-union constitutional amendments have about as much to do with protecting the right of workers to a secret ballot as Wisconsin Governor Scott Walker's legislative attack on state workers and their unions had to do with reducing budget deficits. Each of these amendments is nothing more than another prong of the multi-state assault on unions devised and nurtured by mega-wealthy individuals and corporations. Unlike the Wisconsin statute, however, the amendments the NLRB is challenging push the assault a step further by extending it to private sector workers struggling to become union members.

Our web site will continue to follow the NLRB's progress in challenging these state amendments.

News Release: NLRB initiates litigation against the State of Arizona on amendment limiting method for choosing union representation. National Labor Relations Board, Office of Public Affairs. May 6, 2011.

For fuller treatment of the NLRB's challenge of these states' constitutional amendments, see "Litigation regarding state amendments" and the sources cited therein, available on the NLRB web site.

Greenhouse, Steven. Labor Board Plans to Sue 2 States Over Union Rules. New York Times. April 25, 2011.